SIDEBAR; When Lawyers and Juries Mete Out Punishment

By ADAM LIPTAK

Published: February 19, 2007

The better lawyer often wins. That truism does not offend our sense of justice, except in extreme cases, possibly because the problem is built into the adversary system.

But what about the extreme case? No, this is not a column about, say, a death row inmate whose lawyer slept through the trial. It is about the Ford Motor Company, whose hapless lawyer helped it lose a verdict for more than a third of a billion dollars in 2004.

Consider, for instance, how the lawyer, Anthony E. Sonnett, concluded his cross-examination of an important witness. His last question was a legal classic that has echoed through the appeal of the case, which recently arrived on the Supreme Court's doorstep and may help redefine the way punitive damages are administered.

The witness was Barry Wilson, whose wife, Benetta, was paralyzed when her Ford Explorer rolled over. Mr. Wilson had cut back on his work hours to care for her. He showered her and catheterized her, and he woke several times each night to move her, to avoid bedsores.

Mr. Sonnett saw an opening, and he ended his examination with a flourish.

''The silver lining,'' he said to Mr. Wilson, ''to the extent that there could be one, it has brought you and Benetta and the family closer together?''

Mr. Wilson did not see the upside. ''I don't think it's a benefit or a plus in any way,'' he said.

It was the silver-lining question, an appeals court later ruled, that ''may well have inflamed the passions of the jury.'' In their lawsuit, the couple said Ford had made the Explorer dangerously prone to rolling over and then outfitted it with a weak roof. The jury agreed, hitting Ford twice. First, it awarded $123 million to compensate the Wilsons. Benetta Buell-Wilson had been an athletic graduate student, and now she lives in constant and increasing pain.

''This is a big, big, big verdict,'' Mr. Sonnett pleaded in trying to avoid punitive damages in the trial's second phase. ''I don't think you can send us a bigger message than we have got.''

The jury disagreed, adding $246 million in punitive damages to the message.

Compensatory damages compensate: they pay for medical expenses, lost wages and ''pain and suffering.'' They are meant to make the plaintiff whole. Putting a price on Ms. Buell-Wilson's suffering is impossible, and a jury is as capable as anyone else in trying.

Punitive damages, by contrast, are by definition the extreme case. They are meant to punish and deter defendants who engage in extraordinary wrongdoing. They are similar in purpose to criminal fines, and they can be a windfall to the plaintiffs.

In a filing last month, Ford asked the Supreme Court to hear the case, saying the punitive-damages award, which lower courts reduced to $55 million, violated its right to due process. Ford said that it had complied with safety regulations and industry standards and that it had no fair warning that its conduct could subject it to any punishment, much less an astronomical one.

The usual play after a big punitive award is to attack its size, and the Supreme Court has started to limit the ratio of compensatory awards to punitive ones. The Ford petition asks more fundamental questions about the very concept of punitive damages.

Before the Wilsons' case, there had been 11 other trials of cases challenging the safety of the Explorer. Ford won all 11. But punitive damages can turn into a sort of reverse lottery, if not Russian roulette. You need to lose only once to get killed.

Most countries do not use civil cases to punish wrongdoing. Nor do they entrust juries to make cost-benefit policy judgments about how much safety we want. In the United States, we deputize plaintiffs' lawyers and juries to supplement government safety regulators and law enforcement officials.

The Wilsons' case suggests that a lot can turn on little things, including flat-footed lawyers and stupid questions. That may be fine for compensation, which is at least supposedly tailored to the particular plaintiffs and their injuries. But damages meant to vindicate society's general interests in retribution and safety deserve a more sober assessment.

Mr. Sonnett got into one last bit of trouble in the second phase of the trial, when he was trying to avoid a punitive award. He was under considerable stress. His client had already lost more than $100 million, and his wife had just given birth to their first child.

''It's impossible not to be angry at Ford, Ford Motor Company,'' Mr. Sonnett said, according to the court transcript, ''for what decisions that in marketing and selling this Ford Explorer it knowingly put a defective product out on the market.''

Plaintiffs' lawyers immediately crowed that they would use the statement as an admission of fault in other suits against Ford. At the time, Mr. Sonnett said he had been misquoted by the court reporter. In an e-mail message the other day, he said that Ford had asked him to stop talking about the case.